39b----------------------------------------39b
1) HALACHAH: A FRUIT PICKED ON THE FIRST DAY OF YOM TOV
QUESTIONS: The Gemara relates that the Amora'im permitted one to eat an animal on the second day of Yom Tov if it was captured by a Nochri on the first day of Yom Tov. The same ruling applies to fruit that was picked by a Nochri on Yom Tov (see Beitzah 24b).
There are two issues that need to be clarified.
(a) The animal or fruit is permitted on the second day of Yom Tov because the two days of Yom Tov (outside of Eretz Yisrael) are considered two separate Kedushos. Why, though, is it forbidden to eat the animal or fruit on the first day of Yom Tov?
(b) Normally, a Jew may not benefit from a Melachah performed by a Nochri for a Jew on Shabbos, until enough time has passed after Shabbos for the Jew to have performed the Melachah himself (Shabbos 18b). This is called "bi'Chedei she'Ya'asu." A similar requirement is mentioned with regard to Yom Tov (Beitzah 24b). The Gemara states that if one has reason to suspect that a Nochri picked fruit on Yom Tov for a Jew to eat, that fruit is forbidden for Jewish consumption for the entire day. It is also forbidden after the day ends, until enough time to prepare the fruit has passed. (The SHULCHAN ARUCH (OC 515:1) defines this "preparation time" as the time it takes to pick the fruit, plus the time it takes for the Nochri to transport the fruit from the place of harvest to the location of the Jew by whatever means of transport the Nochri actually used on Yom Tov.)
In the case of two days of Yom Tov, though, how does the requirement "bi'Chedei she'Ya'asu" apply? May a Jew benefit from Melachah done on the first day of Yom Tov after the first day of Yom Tov ends (after "bi'Chedei she'Ya'asu" passes), or must he wait even "bi'Chedei she'Ya'asu" after the end of the second day of Yom Tov? If one must wait "bi'Chedei she'Ya'asu" after the second day, then why did the Amora'im permit one to eat the animal or fruit on the second day of Yom Tov?
ANSWERS:
(a) There are two reasons why a Jew must wait until after Yom Tov to eat a fruit picked by a Nochri on Yom Tov.
1. Since the fruit was attached to the tree when Yom Tov began and was thus inaccessible, it is Muktzah on Yom Tov. It remains Muktzah even after a Nochri picks it, and thus it is prohibited to a Jew.
This reason also applies to the meat of an animal that was captured by a Nochri on Yom Tov.
2. The enactment of "Peiros ha'Noshrim" prohibits the use of any fruit that fell from a tree on Shabbos or Yom Tov. The Rabanan enacted this decree out of concern that one might pick fruit from a tree on Shabbos or Yom Tov.
(b) Two different approaches are suggested by the Rishonim to explain the requirement of "bi'Chedei she'Ya'asu." The question of whether the requirement of "bi'Chedei she'Ya'asu" applies only after the first day of Yom Tov or even after the second day depends on these two approaches.
1. RASHI (DH Lo Teima Lehu), the RAMBAN, RASHBA, RITVA, and others explain that one may not benefit at all from a Melachah performed on Yom Tov, even if it was performed by a Nochri. One who eats this fruit immediately after Yom Tov benefits from the Melachah performed by the Nochri on Yom Tov. When one waits for enough time to pass after Yom Tov before he eats the fruit, he no longer benefits from Melachah performed on Yom Tov, since he had time to prepare the fruit himself after Yom Tov.
This reasoning leads to a leniency and a stringency. Fruit picked on the first day of Yom Tov (outside of Eretz Yisrael) may be eaten that night (after one waits "bi'Chedei she'Ya'asu"). The logic behind this leniency is as follows. If the first day is actually Yom Tov, then the fruit is permitted that evening (which is no longer Yom Tov), just as it is permitted after the end of any Yom Tov. If the second day is Yom Tov, then the fruit that was picked on the first day was picked on a weekday, and is therefore permitted.
The stringency, according to this reasoning, is that there is no distinction between fruit picked for a Nochri or for a Jew. No Jew may benefit from any Melachah performed on Yom Tov.
2. The BEHAG (cited by Rashi), TOSFOS, and others explain that the Rabanan instituted that one must wait "bi'Chedei she'Ya'asu" after Yom Tov as a penalty to discourage people from asking Nochrim to do Melachah for them on Yom Tov.
This reasoning leads to the opposite stringency and leniency. According to the Behag and Tosfos, one must wait "bi'Chedei she'Ya'asu" during a time when it is permitted to do such Melachah. Therefore, fruit picked by a Nochri on the first day of Yom Tov is forbidden until "bi'Chedei she'Ya'asu" passes after the end of the second day of Yom Tov. On the other hand, the requirement to wait after Yom Tov only applies to fruit that the Nochri picked for a Jew. If the Nochri picked fruit for himself, a Jew may use that fruit after Yom Tov immediately.
The ROSH (Beitzah 3:2) is even more lenient in this regard. Since the objective of "bi'Chedei she'Ya'asu" is to discourage a Jew from asking a Nochri to do Melachah for him in the future, there is no concern that a Jew will ask a Nochri to do Melachah for the sole benefit of another Jew. Therefore, even if the fruit was picked for a Jew, the Rosh permits one to eat the fruit immediately after Yom Tov (with the exception of the one for whom it was picked or his family).
(Of course, on the day it was picked, no Jew may eat the fruit because it is Muktzah, as explained above.)
How one defines to whom the Rabanan applied the requirement of "bi'Chedei she'Ya'asu" also depends on these different ways of understanding. According to Rashi, no Jew may benefit from any Melachah until after "bi'Chedei she'Ya'asu." According to the Behag and Tosfos, "bi'Chedei she'Ya'asu" applies only to a Melachah done for a Jew. According to the Rosh, "bi'Chedei she'Ya'asu" applies only to the specific Jew for whom the Melachah was performed.
According to the Behag and Tosfos, who require one to wait "bi'Chedei she'Ya'asu" after the end of the second day of Yom Tov, there are two possible explanations why the Amora'im permitted one to eat the animal on the second day of Yom Tov. They allowed it either because the animal was hunted by a Nochri specifically for Nochrim, or (according to the Rosh) because it was hunted for other Jews and not for them.
HALACHAH: The SHULCHAN ARUCH (OC 515:1) rules in accordance with Rashi that no one may eat fruit picked by a Nochri on Yom Tov until the preparation time has passed at the end of that day. It may be eaten, even by the person for whom it was picked, after one waits "bi'Chedei she'Ya'asu" following the first day of Yom Tov. However, the REMA says that common practice is to follow the stricter opinion of the Behag and Tosfos and not permit the fruit to any Jew until after the preparation time has passed on Motza'i Yom Tov Sheni.
One may not rely on the ruling of the Rosh who allows the fruit to be eaten immediately after the first day of Yom Tov by a Jew other than the one for whom it was picked, except when it is necessary for the honor of Yom Tov, or for Hachnasas Orchim (such as if the fruit is needed for guests on Yom Tov; see MISHNAH BERURAH (515:12) who discusses exactly when this leniency applies).
The Mishnah Berurah (515:13) also cites the Taz who rules that, in extenuating circumstances, one may rely on the first opinion and permit the fruit even for the Jew for whom it was picked (after he waits the preparation time at the conclusion of the first day of Yom Tov, as Rashi rules). In BI'UR HALACHAH (DH v'Yesh Machmirin) he concludes that the opinion of Rashi is indeed the more accepted one, and one may be lenient like Rashi whenever there are other factors involved that allow for leniency.